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WASHINGTON – President Donald Trump's two appointees to the Supreme Court suggested on Tuesday that partisan gerrymandering of congressional districts is already being solved by state action, a possible sign that the nation's top court, dominated by a 5-4 conservative majority, will not step into the matter.
The Supreme Court has never blocked a congressional map for being too politically partisan, although cases have frequently come before the panel on the issue.
Justice Anthony Kennedy, whom Justice Brett Kavanaugh replaced on the court last year, had suggested that there may be room for a "workable standard," though so far one has eluded the court. Kavanaugh's own views remain largely unknown.
But questions from Kavanaugh and fellow Trump appointee Neil Gorsuch, during a case involving a congressional map drawn by North Carolina Republicans, suggested that no legal fix may be forthcoming – at least at the national level.
"What about, to pick up on something Justice Gorsuch said earlier, that there is a fair amount of activity going on in the states on redistricting and attention in Congress and in state supreme courts?" Kavanaugh asked Allison Riggs, a voting rights attorney who was representing the state's League of Women Voters in their case against North Carolina.
"In other words...have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can't do it?" he asked.
Gorsuch, for his part, noted that there was "a lot of movement in this area," including in his home state of Colorado, where voters reined in the practice last year. Voters in Missouri, Ohio, Utah and Michigan also acted on the issue.
To be sure, questions that justices ask at oral argument are not a perfect gauge for how they will vote.
And complicating matters, during another portion of Tuesday's argument, Kavanaugh appeared to question whether extreme gerrymandering could violate the Constitution's guarantee of equal protection.
"What will Kavanaugh do? It is a more interesting question than I thought before," wrote Rick Hasen, an election law expert and professor at the University of California, Irvine.
The case involved a North Carolina map drawn in 2016 that was explicitly designed to maintain a 10-3 advantage for Republicans.
David Lewis, a member of the state's general assembly, has said that he proposed a 10-3 Republican advantage "because I do not believe it's possible to draw a map with 11 Republicans and two Democrats."
North Carolina defended the gerrymandering on the basis that redistricting is an inherently political activity that courts should not get mired in.
The suit against North Carolina was brought by the good government group Common Cause as well as the League of Women Voters. Attorneys for both groups argued separately Tuesday.
The issue is particularly significant at the moment because districts are generally redrawn once every ten years along with the national census.
The next census will be conducted in 2020. Republicans primarily benefited from gerrymandering after the nation's last census. During the November 2018 midterms, in which the Democrats took over the House of Representatives, the GOP advantage stemmed Republican losses, a recent analysis by the Associated Press found.
The justices heard a similar gerrymandering case in 2017, but ultimately dodged the central question. In a concurrence authored by Justice Elena Kagan and joined by other members of the court's liberal wing, Kagan suggested that courts would ultimately come up with a fix.
One central point of contention is whether any new standard would result in an onslaught of new litigation before the top court.
Paul Clement, an attorney representing North Carolina, warned that "these cases will come. They will come in large numbers," he said.
"And once you get into the political thicket, you will not get out, and you will tarnish the image of this court for the other cases where it needs that reputation for independence so people can understand the fundamental difference between judging and all other politics," Clement said.
But some of the court's liberals took issue with that argument. Justice Ruth Bader Ginsburg told Clement that he was making the same argument that had been used to argue against the one-person-one-vote rule that the court ultimately endorsed, and that no such wave of litigation resulted.
Justice Stephen Breyer, known as a pragmatist on the bench, put forward his own standard. What if, he said, gerrymandering were barred in extreme cases — defined as those where the party that wins a majority of the vote only gets a third, or less, representation?
Clement retorted that "there is no standard deviation from proportional representation clause in the Constitution."
Later on Tuesday, the court heard a dispute brought by Republican voters in Maryland who live in a district that was gerrymandered by Democrats.
Decisions are expected by late June.